Tuesday, March 30, 2010

Early this month, Greg Lastowka blogged at Terra Nova about the Stern v Sony decision which concerned the issue of whether Sony was required under the federal Americans with Disabilities Act to make reasonable accommodations to its game software to suit the needs of players with disabilities. In particular, the plaintiff who had visual and other learning difficulties required Sony to provide or enable mods which would provide visual and auditory cues.The judge dismissed the claim on the basis that the relevant provisions of the ADA apply only to physical places or goods or services connected to physical places. The claim based on the fact that inability to fully participate in the games limited the plaintiff's ability to participate in gaming conventions organised by Sony was also dismissed.As Greg L points out, the case again generates the question of cyberspace (or virtual environment) as a space, something that is becoming increasingly an issue as regulators are turning the eye of Sauron upon the question of whether and how such spaces need regulation. He states: 'If online spaces and social software, like Facebook and Second Life, are becoming new hubs of interaction and commerce, we would think the goals of the ADA should resonate in cyberspace as well.' However, he concedes that regulation may not be the best way to achieve this end.One thing that struck me upon reading the complaint, was the claim that Sony had 'no process in place to address the removal of barriers for persons with disabilities.' Rather:'The sole generic user communication process provided by Sony through which anyone, disabled or non-disabled, could attempt to request or suggest any kind of modification or otherwise address any type of user issues concerning the Products requires the individual(s) to accept a contract waiving his or her rights to a trial by jury and requiring mandatory binding arbitration, a change in venue as well as other similarly onerous provisions and which otherwise constitutes a contract of adhesion. Plaintiff has not undertaken to use this generic process because he does not wish to forgo his constitutional right to a trial by jury for the sole purpose of helping Sony come into compliance with applicable law.'This seems to be the type of clause which fell foul of the Court in Bragg v Linden Research,and clearly the purpose of this argument is to put this at the forefront of the Court's mind (and although I am not convinced this is actually an accurate interpretation of the application and effect of the clause). VW providers may need to have a look at this mandatory arbitration clause to ensure it will not be struck out on the grounds of (US style) unconscionability.Yet again we confront an issue of contract versus general law.The Judge concluded:'The problem with Plaintiff’s assertion is that he does not seek an auxiliary aid or service to foster effective communication at a place of public accommodation such as Sony’s conventions, or to take full advantage of the goods, services, and privileges available at the conventions, but to fully enjoy the video games, which as the Court has already concluded, are not sufficiently connected to a place of public accommodation. To hold otherwise would create potential liability under the ADA for manufacturers of all manner of products if those manufacturers failed to make available auxiliary aids allowing the entire panoply of individuals with disabilities the full enjoyment of their products. 'There are some issues here that need further exploration but legislation may not be the best first option.